prosecution for a minor offence (contravention). But in all cases constituting a criminal offence (delitto) a counsel must be appointed; and if the prisoner does not select one, the president of the court or the local judge appoints one. Before the police court (pretore), any one being of full age and entitled to exercise his civic rights may appear as counsel. Before the criminal court without juries (tribunale penale), any advocate or solicitor (procurator) practising in the courts may be chosen. Before the criminal court with juries (Court d'Assize) the prisoner's counsel must be an advocate. No counsel, whether selected by the prisoner or by the court, except for sufficient reason, is allowed to refuse his services. Officially appointed counsel are selected by rotation. Therefore counsel's assistance, as in France, is applicable to the last stage only of the proceedings. In all public prosecutions the costs are advanced by the State; whether this includes the fees of counsel appointed by the court, as in France and Germany, is uncertain.

Belgium. At the Brussels Conference in 1897 the following facts were elicited as to the procedure in Belgium,-that the Junior Bar interests itself in the defence of undefended persons, especially in the defence of paupers and young persons accused of crime; and committees exist for these purposes composed exclusively of barristers.

Norway. In Norway there appears to be some system for the defence of prisoners; for (it is understood) a somewhat curious practice exists there, that before admission to the Bar each student has to show that he has defended at least three or four prisoners-presumably gratuitously.

Denmark.-In Denmark a very interesting institution is at work known. as the Danish Retshjaelp (legal helper), which gives legal advice and assistance in all matters to the poorer classes, and is carried on by advocates and students. It was first instituted by the "profession" in 1885, and has been carried on ever since, and is presided over by a distinguished member of the profession. A full and interesting account of this is given in an article called "A Poor Man's Lawyer in Denmark," in the Law Quarterly Review, vol. vii., p. 174.

United States. In the United States of America the custom varies somewhat in different states. In the courts of the commonwealth of Massachusetts it is the custom to assign counsel for the defence in cases where the accused is charged with a capital offence. Senior and junior counsel are generally assigned, and their fees are paid by the Government, as well as all the other expenses of a defence. The defendant has no choice of a counsel. The fees range from one hundred to sometimes seven hundred dollars. There is a further provision which entitles a person accused of capital crime or crime for which the penalty is imprisonment for life, or where a person accused is supposed to be insane, to have Government process to summon all witnesses, including expert or medical witnesses, necessary for his defence, at the expense of the commonwealth. The prosecuting counsel

or the court may interfere to prevent the accused summoning a host of witnesses whose testimony can be of no value. When a person is accused of any offence, and is not represented by counsel, it is the practice of the district attorneys always to submit their case without argument.

In the States of Arkansas, Alabama, California, Illinois, Iowa, Kansas,* Michigan, Missouri, New York, Georgia, Pennsylvania, and Tennessee, a member of the Bar is appointed by the court to defend a prisoner indicted on a criminal charge if the prisoner has expressed a desire for counsel to defend him. Counsel cannot charge for his services, and the State is not liable for such expenses. This is upon the principle that an attorney is an officer of the court, and that this is one of the duties which he assumed when appointed an attorney-at-law. The States of Washington and Iowa have even gone further than this by passing statutes providing that attorneys-at-law shall under such circumstances defend gratuitously; but in Indiana, Alabama, Ohio, Nebraska, and Wisconsin there are statutes providing for the compensation of attorneys who so defend; and in Nevada a judge has authority under statute to allow compensation not exceeding fifty dollars, and in Maine up to one hundred and fifty dollars.

British Colonies.-In Canada, in the Superior Court it is the practice to assign counsel to prisoners unable to employ one, the service of counsel being honorary, and no provision being made for their remuneration. But the practice of Canadian courts is to allow the expenses of witnesses for the defence, which are borne by the Crown, where, on application to the court, the court is satisfied that the prisoner is unable to procure witnesses from lack of means.

In New South Wales all aboriginals accused of crime have professional assistance provided for them as a matter of course, and fees are paid to counsel for that purpose; and, further, the annual estimates of the colony provide a small sum for the defence of impecunious prisoners on capital charges.

The Queensland Government also provides for the defence of aboriginals and of Polynesians charged with indictable offences, at the expense of the Government. It allows a fee, varying in amount, but usually ten guineas, to counsel for the defence of any person charged with murder, and who is in destitute circumstances, the selection of counsel being left to the accused.

In Victoria the arrangements for the defence of aboriginals and persons accused of capital crimes are always made before the trial; and by an Order in Council all persons without means may apply to the sheriff, who may communicate with a barrister or solicitor named by the prisoner, and report the same to the Attorney-General. Witnesses for the defence are paid on the same scale as Crown witnesses, providing the judge certifies to their being necessary and material.

Scotland. The system for the defence of prisoners in Scotland (as well

as for assisting the causes of the poor) is perhaps the most extensive and elaborate to be found anywhere. In the Supreme Court, agents (ie., solicitors) for the poor are appointed annually by the two bodies known as writers to the Signet, and solicitors before the Supreme Court, each society nominating two agents for civil causes and two for criminal trials. The agents appointed are such as have joined the respective bodies during the foregoing years. In the sheriffs' courts the agents for the poor are appointed by the solicitors enrolled as practitioners before those courts. The number varies. In Glasgow twenty are annually appointed.1 In criminal cases, those defending in forma pauperis have not to verify their poverty or show a probabilis causa litigandi (as in civil causes).

Agents for the poor inform themselves as to cases by visiting goals; and the prisoners, if they plead not guilty, are defended on trial. Provision is made for distributing the cases fairly among the various counsel and agents. Should a case be left derelict, the judge assigns counsel from among those present. Neither counsel nor agents for the poor receive remuneration. The agent in charge of a case is not bound to defray the expense of bringing witnesses. It is a common opinion in Scotland that these expenses should be provided from some public source.

In practice, therefore, in Scotland all prisoners have the benefit of professional assistance. Fewer prisoners plead guilty than would otherwise do so; but it has never been a matter of complaint that the expenditure of time thus involved was an evil or not compensated by the advantages of a general system providing for fair trial. In the Supreme Court the poors' counsel have the right in difficult cases to invoke the assistance of the Dean of Faculty of Advocates in the conduct of a defence. A learned writer (Archibald Alison), writing on the practice of the criminal law in Scotland, says: "Prisoners in Scotland are invariably furnished with counsel. If they are too poor to fee themselves, they are assigned them by the court, and this duty the barristers are not permitted to decline. If no barristers are present, the sheriffs of the counties, who must be there, are named by the court to undertake that office." For many years one of the most distinguished writers of the present century (Sir Walter Scott) was regularly nominated to that duty at the Jedburgh Circuit, and the talents which have rivetted the admiration of both hemispheres were often gratuitously and successfully exerted in defending the humblest and most destitute of the Scottish prisoners. It is seldom, however, that this duty is devolved upon the sheriffs of the counties. The great competition of the Bar induces numbers of young men to travel the circuit, at a very heavy loss to themselves, for the purpose of acquiring information and distinction.

'In Edinburgh the Faculty of Advocates offer the office of counsel for the poor annually to six members of the Bar, called subsequent to 1868, in order of seniority. There is no salary, but expenses awarded against the opposite party may be recovered by the agent or counsel who acted.

The same learned writer goes on to say: "Often counsel of the first eminence gratuitously undertake the cases of the poorest prisoners. It is not unusual to see the same counsel who are retained in the cases of the first peers of the realm on one day engaged the next in the defence of the poorest and most destitute criminals."

England. In England the Crown nominally prosecutes in all cases; actually, cases are prosecuted by private persons, public bodies, and the police. When none of these prosecute, the Crown or the County do so. The Crown means the Imperial Treasury; the County, the County Treasury and it is upon these two bodies that all or nearly all the expenses of a criminal prosecution fall. It was not until 1752 (25 Geo. II., c. 36, s. 2) that the costs of a private prosecution were ordered to be paid by the County Treasury, and not until 1867 that the expenses of witnesses for the accused who are bound over by recognisances to appear at the trial were allowed. These are all the expenses allowed at the present day. That no expenses were allowed to persons wrongfully accused troubled the benevolent mind of Sir Samuel Romilly in 1807, for in his diary (vol ii., p. 229) he says he has in contemplation in the reform of the criminal law to invest the criminal courts with a power of making such compensation to be paid out of the County rates.

It will thus be seen that England is far behind both Scotland and her colonies and many foreign countries in providing for the defence of accused persons. The subject occupied the mind and troubled the conscience of one, if not the greatest, of her jurists, Jeremy Bentham; and there can be no better conclusion to this article than to quote from the "Draft for the Organisation of Judicial Establishments" his weighty comments upon the necessity of the office of a Defender-General: "Is," he asks, "the office of Defender-General a needless one? Is it much less indispensable than that of Pursuer-General? Can it be right that there should always be somebody for the prosecution of delinquency and that there should never be anybody for the defence of innocence? In England, as in France, the policy as to this matter remains still in the same state in which it was first traced out. . . . It was the interest of the king that those who were guilty should be punished. It was no interest of the king's that those who were not guilty should escape. By their punishment he could get something-by their acquittal he could get nothing; they were accordingly left to provide for it as they could. In the eye of common sense, of justice, and of humanity, there are two parties to every cause, but despotism acknowledges but one. In the Pursuer-General you have a magistrate ready to be charged with the cause of the plaintiff too poor and too friendless to find another advocate. Under a penal prosecution, is the poor man, of all others, to have none to help him?"

ALLEN v. FLOOD: IN ROMAN LAW.

[Contributed by WALTER H. GRIFFITH, ESQ.]

By the common law it is not actionable through motives of ill will to induce an intending contractor not to enter into a contract with a potential promisee (Allen v. Flood1). By the common law, as at present declared, it is actionable through motives of ill will to induce an actual contractor to break an existing contract with any actual promisee (Lumley v. Gye2; Bowen v. Hall 3). We say as at present declared" because neither of the two last cited cases has been reviewed in the House of Lords. The doctrine which they establish has, however, been fully recognised in America (Walker v. Cronin; Angle v. St. P. M. & O. Ry. Co.).

Before the decision of Allen v. Flood opinions in England were divided as to the principle on which the doctrine of Lumley v. Gye and Bowen v. Hall was founded, some asserting that the doctrine was a particular example of a general principle, that it is actionable to cause temporal loss or damage without lawful excuse, and that motives of ill will do not constitute lawful excuse; others holding that it was an extension of a branch of the law of master and servant-viz., that the abduction of a servant is an actionable wrong. In the latter view the existence of a contract is essential to constitute a cause of action; in the former it is not. In the latter case the cause of action alleged in Allen v. Flood would lie; in the former it would not. The former view has not prevailed.

How has the Roman law dealt with these questions? By that law he who persuaded a slave to run away was liable to an action, not of theft (furtum) (Dig. 47, 2, 366), but of fraud (dolus malus) (Dig. 4, 3, 317). So much for the abduction of servants.

We also find authority for the following propositions: To free a slave is a perfectly lawful act, but to free a slave from motives of ill will (vindicta), in order to defeat another of his right to have an account rendered by the

1 1898, A.C. 1.

2 2 E. & B. 216.

36 Q.B.D. 333.

4 107 Mass. 555.

5 14 S.C. Rep. 240. Van Horn v. Van Horn, 28 Atl. Rep. 669.

6 14

'Qui servo persuasit ut fugeret, fur non est."-Dig. 47, 2, 36.

7 "Cum quis persuaserit familiæ meæ ut de possessione decedat, possessio quidem non amittitur, sed de dolo malo judicium in eum competit, si quid damni mihi accesserit.”— Dig. 4, 3, 31.